Gyamfi v Yeboah (C10/032/2024) [2025] GHAHC 174 (5 March 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURTOF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON WEDNESDAY THE 5TH DAY OF MARCH, 2025 BEFORE HER LADYSHIP JUSTICEJOYCE BOAHEN, HIGH COURTJUDGE SUIT NO. C10/032/2024 INTHEMATTER OF ANAPPLICATIONFOR COMMITALFORCONTEMPT AND INTHEMATTER OF THEREPUBLIC VS. KWADWOYEBOAH RESPONDENT EX–PARTEGLADYSGYAMFI APPLICANT JUDGMENT–CONTEMPT OF COURT Applicant present Respondent present 1 Frempong BoamahfortheApplicant present DonaldAwintomaAdabreholding brief ofKwame TwumasiAwuahfor theRespondent present PRELIMINARY MATTERS Before I determine the application, I will like to address some preliminary matters. It is useful to note that Counsel for the Respondent raised an issue that the substantive suit which gave birth to the contempt application is pending before Commercial Court “A” with the title; Gladys Gyamfi of House Number KN 28/D Kotokrom near Sunyani v. Kwadwo Yeboah @ Alhaji Husein of Fiapre with Suit No. C1/219/2023. Counsel stated that the Applicant failed to comply with the practice direction of the former Chief Justice Anin Yeboah which stated that when a suit is pending before a superior Court and a contemptuous issue arises out of that suit, the contempt application must be filed inthe same Courtwiththe same suit number. I must admit that the present case was filed in this Court on 6th February, 2024 and the former Chief Justice’s directive is dated 8th November, 2022. By inadvertence the case has been pending in this Court until today that the Court is to deliver judgment. The case is not at the initial stages where the Court could take steps for the case to be transferred to Commercial Court “A”. In the Court’s considered view, it would further 2 the interest of justice and the overall objective of Order 1 Rule 2 of the High Court (Civil Procedure) Rules, 2004 (C.I 47) which enjoins all Courts to achieve speedy and effective justice, avoid delays and unnecessary expense to deliver judgment in this matter as scheduled than to havethe matter transferred to the other Court. Furthermore, it is the Court’s considered view that delivering judgment in this Court would not occasion substantial miscarriage of justice to any of the parties who have willfully participated in thesuit fromits inceptionon 6th February,2024todate. Furthermore, the Respondent stated in paragraph (2) of his affidavit in opposition that Counsel for theApplicant moved the motion for the grant of interlocutory injunction on 12th January, 2024 and for that matter this application for attachment for contempt of Court filed on 6th February, 2024 is hopelessly incompetent and same is incurably defective. The Court is of a firm view that the issue before the Court is not about when the motion on notice for interlocutory injunction was moved and whether it has rendered the contempt application incurably bad and defective. The issue is about whether or not the Respondent after being served with the motion on notice for interlocutory injunction on 2nd October, 2023 continued to develop the land which the injunction seeks to restrain him from developing. The Court is therefore of a firm conviction that the contempt application is not hopelessly incompetent. Neither is it incurably bad ordefective.I thereforeproceed todetermine the applicationonits merits. 3 MOTION ON NOTICE FOR ATTACHMENT OF THE RESPONDENT FOR CONTEMPT OFCOURT On 2nd October, 2023 theApplicant herein filed motion on notice for an order to commit the Respondent for contempt of Court for his willful disobedience of judicial process. The Applicant’s case is that she commenced an action against the Respondent seeking the reliefs endorsed on the writ of summons filed on 4th May, 2023. She attached a copy of the writ of summons as exhibit “AA1”. The subject matter of the suit are plot numbers 130 and 131 situate at Block “E” sector 8 Fiapre North which forms part of stool land vested in the Lands Commission. She was put in possession of the plots but due to the Respondent’s harassment and intimidation of her workmen she issued the writ. The Respondent entered the land while the suit was pending to lay a foundation. She applied to the Court on 2nd October, 2023 for an order of interlocutory injunction to restrain the Respondent from further developing the land pending final determination ofthe suit. She attached the motionas exhibit “BB1”. That the Respondent has cleared the land as shown in exhibit “C’ dated 9th September, 2023. Per exhibit “D” the Respondent has raised a foundation on the plot dated 27th September, 2023. The Applicant attached a search conducted at the Registry of this Court showing that the motion for interlocutory injunction was served on the Respondent on 2nd October, 2023 per exhibit “F”. That exhibit “F” shows that after the Respondent was served with the motion, he attended Court on a number of mentions. 4 The Respondent filed affidavit in opposition to the application for interlocutory injunction on 19th October, 2023 which the Applicant attached as exhibit “F1”. The Respondent acted in willful disobedience to judicial process and brazenly continued to build on the land to the extent that the land which was at the foundation stage on 27th September, 2023 per exhibit “D” attached to exhibit “BB1”, the Respondent developed the land to the roofing level in exhibit “H” dated 22nd November, 2023. The Respondent did not stop there but confirmed further development on the land by putting roofing materials on the structure per exhibit “G” dated 17th January, 2024 when he was aware that the application was pending seeking to restrain him from developing theland. The Applicant’s case is that the Respondent’s conduct by intentionally developing the land constitutes willful aberration to judicial process intended to spite the Court and bring the administration of justice to disrepute and mockery and therefore he must be punished severely for his willful conduct and disobedience to judicial process. Counsel for the Applicant in his written submission in support of the application discussed the burden of proof with applicable authorities such as Section 13 (1) of the Evidence Act, 1975 (NRCD 323) which states that; “In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt.” He further cited the case of Republic v. Boateng & Oduro Ex Parte Agyenim Boateng [2009] Supree Court of Ghana Law Report (SCGLR) 5 154 @ 162 among others which espoused the standard of proof in contempt applications asproof beyond reasonable doubt. Counsel prayedthe Court tocommit the Respondent for contempt because the Applicant proved the guilt of the Respondent beyond reasonable doubt and the Respondent’s own paragraphs (7) and (15) of his affidavit in opposition to the motion on notice for interlocutory injunction settles the person building on the disputed land as the Respondent which defeats the Respondent’s denial ofexhibits “C”.“D”,“G”and “H”. RESPONDENT’SOPPOSITION The Respondent filed affidavit in opposition to the contempt application on 16th February, 2024 and states that as a result of his age and infirmity he is always in the house and attends Court because he has been dragged to Court by the Applicant. He noted that the present application is hopelessly incompetent, incurably bad and defective because Counsel for the Applicant moved the motion on notice for interlocutory injunction on 12th January, 2024. That the application is borne out of mischief, fraud and dishonesty. The Respondent noted that there is no correlation between the subject matter in dispute and exhibits “G” and “H” that the Applicant attached. The Respondent claimed that he has not disrespected, ignored nor disregarded any orders, procedure, process etc. of the Court. He argued that the application has no leg to stand on because due to his health condition he does not stay outside for long and that the application was brought in bad faith. The Respondent 6 stated that exhibits “H” and “G” has no human beings seen in them to establish that he or his agents developed the disputed land and that the application is much ado about nothing. Inhis writtensubmission in support ofthe affidavit in opposition, Counsel repeated the Respondent’s claim of no correlation between the subject matter of dispute and exhibits “G” and “H”.According to Counsel, neither the Respondent nor anybody purported to be his agents are in the photographs, exhibits “G” and “H”. Another argument of Counsel is that the Respondent has not put up any conduct to undermine the administration of justice. Counsel cited the Black’s Law Dictionary 9th Edition by Bryan A. Garner as Editor in chief which defined contempt as; conduct that defies the authority or dignity of a Court or legislature. Because, such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment. He mentioned Article 126 (2) of the 1992 Constitution and the Courts Act 1993, Act 459 as amended as statutesfromwhichthe Courtderivestheir powertocommit for contempt. With reference to authorities on the subject, Counsel noted that the Applicant failed to establish the guilt of the Respondent beyond reasonable doubt. Counsel argued that the developments in exhibits “G” and “H” are not on the subject matter in dispute. Counsel contends that the Applicant failed to prove that the Respondent or his agents, carried out the development captured in exhibits “G”and “H”.That theApplicant also failed to establish that the developments were actually done on the subject matter in dispute. 7 According to Counsel, the Applicant by filing the contempt application in this Court while the substantive matter is pending in Commercial Court “A” violates the former Chief Justice Anin Yeboah’s directive that the substantive suit and a contempt application that arises from the substantive suit should be filed in the same Court and with the same suit number. Counsel argued that the Applicant is just assuming that the Respondent is the one carrying out those developments but that assumption cannot support the Applicant’s assertion that the Respondent disrespected, disregarded and flouted any judicial processes or orders. Counsel therefore prayed the Court to dismiss theapplication and fortheApplicant tobe mulcted incosts. BYCOURT; Civil contempt being a quasi – criminal act requires the standard of proof beyond reasonable doubt and therefore anything short of that must fail. In the case of Kanga v. Kyere [1979] Ghana Law Report (GLR) pages 458 to 468 at 458 the Court held that; to obtain a committal order for contempt, the applicant must strictly prove beyond all reasonable doubt that respondent willfully disobeyed and violated the court’s order…xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx The Black’s Law Dictionary 10th Edition by Bryan A. Ghana Editor in Chief, page 1457 defines reasonable doubtas follows; 8 The doubt that prevents one from being firmly convinced of defendant’s guilt, or the belief that thereis arealpossibility that adefendantis notguilty. “Reasonable doubt…is a term often used., probably pretty well understood, but not easily defined. It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which after the entire comparison and consideration of all the evidence, leaves the minds of jurorsin that condition thatthey cannotsay they feelan abiding conviction,to amoral certainty, of the truth of the charge. In the case of Republic v. High Court, Kumasi; Ex Parte Fosuhene [1989 – 90] 2 GLR 315–323the Courtheld in holding (1) asfollows; the object of the discipline enforced by the court in a case of contempt was not to vindicate the dignity of the court or the person of the judge but to prevent undue interference with the administration of justice… The Applicant’s case is that she issued a writ of summons against the Respondent per exhibit “AA1” for declaration of title and that she is the lawful owner of plot numbers 130 and 131 situate at Block “E” sector 8 Fiapre. She initiated this suit because after she acquired the land and she was put into possession, the Respondent started to intimidate and harass her workers. After filing the suit, the Respondent entered the land and started to develop it. She filed an application for interlocutory injunction per exhibit 9 “BB1” to restrain the Respondent, his agents, assigns, privies etc. from dealing, developing and interfering with the land. I found that the Applicant issued a writ of summonson4th May,2023against theRespondent titled; Gladys Gyamfi of Odumasi as Plaintiff v. Kwadwo Yeboah as Defendant. The Plaintiff claimed against the Defendant for (a) declaration of title to land stated above, (b) general damages for trespass and (c) an order of the Court restraining the Defendant from interfering with the enjoyment, occupation and possession of the plots described in relief (a) supra by entering the plots to harass, intimidate the workmen, labourers, assigns etc. of the Plaintiff in any manner whatsoever. The Court confirms exhibit “BB1”, motion on notice for interlocutory injunction filed on 2nd October, 2023 praying the Court to restrain the Respondent and all persons claiming through him from interfering with the disputed plots. The Applicant contends that the Respondent was served by a search she conducted at this Court’s registry, exhibit “F” filed by the Applicant at the Court’s registry which shows that the Respondent was served with the motion on notice for interlocutory injunction on 2nd October, 2023. Thereafter the case was mentioned on five occasions on 3rd July, 2023, 23rd October, 2023, 27th November, 2023,14thDecember,2023and16th January,2024. According to the Applicant the Respondent filed affidavit in opposition to the motion on notice for interlocutory injunction. The Court found that per exhibit “F1” the Respondent herein Kwadwo Yeboah @ Alhaji Hussey filed an affidavit in opposition to 10 the application on 19th October, 2023 which confirms that he was served with the application and he was very much aware of what the application seeks to restrain him from doing by filing an affidavit in opposition in response accordingly. The Applicant states that as at 9th September, 2023 per exhibit “C” a photograph attached to the motion on notice for interlocutory injunction exhibit “BB1” the Respondent had cleared the disputed land. The Court found a photograph attached to the motion and referred to as exhibit “C’which shows landthat hasbeen cleared. According to the Applicant, exhibit “D” attached to the motion shows that the stage of development on the disputed land as at 27th September, 2023 was at the foundation stage per exhibit “D” as attached to the motion, exhibit “BB1”. The Court found the said photograph dated 27th September, 2023 showing some block works at the foundation level. It is useful to note that this was before the Applicant filed the present motion for contempt on 6th February, 2024 which means that the Applicant was monitoring developmenton the land, the subject matter ofdispute betweenher and the Respondent closely and no other land before she filed the motion on notice for contempt. The Applicant attached exhibit “H” dated 22nd November, 2023 showing that the developmentsonthe land which wasat thefoundationlevelhad reached roofing level. At this time the Respondent had been served with the motion on notice for interlocutory injunction and he has filed an affidavit in opposition to it and he knew that the motion was pending. The land was further developed as shown in exhibit “G” 11 dated 17th January, 2024 showing that a roof has been erected on the structure. The Applicant contends that the Respondent willfully disregarded the pending motion on notice for interlocutory injunction and developed the land. The Applicant stated that she is convinced that the Respondent is the one who developed the land because of his depositions in paragraphs (7) and (15) in his affidavit in opposition to the motion on notice forinterlocutoryinjunction. Inparagraph(7)the Respondent stated; “That I have cleared my own land with the consent, concurrence etc. of NANA OBIRI BOAHEN; my presentLawyer who alsohas interest inthe subjectmatter in dispute”. The affidavit in opposition was filed by the Respondent on 19th October, 2023 when he had notice of the motion on notice for interlocutory injunction. He said that he has cleared his own land, which land? It is clear from the record that the Respondent is referring to the disputed land which is the same land the Applicant captured in photographsbeforethis Court, exhibits “C”,“D”,“G”,and “H”. Inparagraph(15)ofhis affidavit in opposition theRespondent stated; “That atmy age, I needto putupa structurefromwhich Ican sellitems for my survival”. This confirms the Applicant’s exhibit “G”, a big shed which has been roofed on the disputed land. Based on the evidence proffered by the Applicant, Counsel for the Applicant argued that the Applicant has proved beyond reasonable doubt 12 notwithstanding the Respondent’s claim that neither himself nor his agents, etc. are shown in the photographs the Applicant attached regarding ongoing developments on the disputed land. Counsel relied on the Respondent’s depositions in paragraphs (7) and (15) in his affidavit in opposition to the motion on notice for interlocutory injunction and stated that those developments defeats the Respondent’s arguments that neither him nor his agents are in the photographs the Applicant attached. Counsel submitted that by paragraphs (7) and (15) of the affidavit in opposition to the motion on notice for interlocutory injunction the Respondent admitted that he is the one who put upthe structureonthe disputed land. Counsel therefore prayed the Court to punish the Respondent for his unruly conduct intended to bring the administration of justice into disrepute and mockery. In his affidavit in opposition the Respondent denied carrying out any developments on the disputed land. He claims because of his age and his infirmity, he is always in the house. He further stated that even the photographs the Applicant attached to the motion do not show him or his agents on the land. He further stated that the photographs, exhibits “G” and “H” that the Applicant attached have no correlation with the subject matter in dispute. He described the application as needless, filed to solicit the Court’s sympathy and that the application has no leg to stand on. That the application is brought in bad faithand same is much ado about nothing. 13 The Court holdsa contrary view that this application has two solid legs to stand on. It is much ado about something and that thing is the land, the subject matter of dispute, plot numbers 130 and 131 situated at Block “E” Sector 8 Fiapre North. The application is therefore not borne out of mischief, fraud and dishonesty. The Court does not see this application as one seeking to solicit the Court’s sympathy. It is neither hopeless, incompetent nor incurably bad as claimed by the Respondent and his Counsel. This is because this Court is not dealing with whether or not the application for injunction has been heard but rather, whether or not the Respondent was served with the motion on notice for interlocutory injunction on 2nd October, 2023 and after that he further developed the disputed land, an act that the motion on notice for interlocutory injunction seeks to restrain him from doing. Exhibits “G” and “H” speak volumes and although the Respondent denied the said photographs as photographs of the disputed land, his own affidavit in opposition paragraphs (7) and (15) filed on 19th October, 2023 in response to the motion on notice for interlocutory injunction defeats his denials because he admitted thathe had to developthe land tofurther his survival. There is no other land which is the subject matter of dispute between the parties except the disputed land. The Court on the contrary finds a correlation between the photographs tendered by the Applicant and the disputed land and therefore holds a firm view that the Applicant discharged her burden of proof that the Respondent upon being served with the application for interlocutory injunction on 2nd October, 2023 went 14 ahead to develop the land in willful disobedience to the application. For the foregoing reasons the Court is convinced beyond reasonable doubt that the Respondent after being served with the motionon notice for interlocutoryinjunction on2nd October,2023, blatantly disregarded the fact that the motion seeks to restrain him. He instead went ahead tofurtherdevelopthe disputed land. In the light of the above, the Court finds that a charge of contempt of Court has been made against the Respondent. I hereby convict the Respondent accordingly. In his plea for mitigation, Counsel for the Respondent intimated to the Court that the Respondent is eighty three (83) years old which the Respondent confirmed. Counsel further noted that the Respondent is called Alhaji but he is a man of straw. The Respondent pleaded with the Court to deal leniently with him while Counsel for the Applicant insisted that the Respondent should be punished. After hearing both Counsel the Court sentenced the Respondent to sign a bond to be of good behavior for six months. In violation of the bond the Respondent would serve six months imprisonment. Cost of Three Thousand Ghana Cedis (Ghs 3,000.00)is hereby awarded infavour of the Applicant. (SGD) JUSTICEJOYCE BOAHEN HIGHCOURTJUDGE 5TH MARCH2025 15